Heeding the Lessons of SCO, or Not

By Jay Lyman
Sep 13, 2011 5:00 AM PT

We recently saw what is being described as
the ending of the seven-year-old SCO contract and intellectual property dispute that dragged Linux through the mud before it propelled the open source OS into much broader enterprise use and credibility.

You'd think the lessons of SCO would be a shining example for technology companies of what not to do in order to maintain leadership and relevance. Yet, today we see technology heavyweights such as Microsoft, Oracle and Apple repeating some of the same mistakes that led SCO to ridicule and then ruin.

Losing Strategy

Way back in 2003, SCO began asserting its rights of ownership and control over the Unix OS and also improper use of its IP in Linux. Along with SCO's many assertions and suits, including those against Novell and IBM, came threats of lawsuits against large enterprise users of Linux. Then, in March 2004, SCO
actually sued large Linux users DaimlerChrysler and AutoZone. Those suits resulted in a summary judgment against SCO and a settlement, respectively, but they were momentous at the time, in that they represented SCO following through on its threats and actually suing Linux users. Similar to those cases, almost all of the courtroom decisions and outcomes have been against SCO, which subsequently declared bankruptcy.

When it began becoming apparent that SCO's aggressive legal strategy was not succeeding and the company's actual technology business had diminished along with the overall enterprise Unix market, the head of the Open Source Development Labs, at the time the organization where Linux was developed, credited the SCO suits for accelerating and driving enterprise use of Linux.

Given all of that history, it seems somewhat strange to see large, smart technology companies such as Microsoft, Oracle and Apple doing some of the same things SCO started nearly 10 years ago. I've written before about how the FUD around the Android mobile OS is
reminiscent of the kind of skepticism Linux faced as it moved from hobbyist to geekdom to enterprise leader. Time will tell whether Android can emerge as well as Linux after SCO, but I'll be watching the technology much closer than the litigation.

Inviting FOSS' Wrath

For its part, Microsoft was among the first to display a willingness to take a SCO-like path when in 2007
it asserted Linux infringed on its patents and IP. Microsoft's infamous claim that Linux infringed on 235 of its unspecified patents may have served as the basis for some licensing deals, but it also fostered more skepticism of Microsoft among Linux and open source supporters.

This includes key communities that Microsoft now works hard to reach and support, including Linux distributions SLES, RHEL and CentOS and programming languages such as PHP. Though Microsoft has made clear that IP licensing is a significant part of its business, and the company has secured settlements and agreements with companies using Linux and more recently, Android, it does somewhat undermine Microsoft's confidence in its own technology.

The fact that Microsoft is taking it a step further to sue Barnes & Noble and Motorola over their use of Android highlights another SCO-like move that unwisely mixes legality with strategy.

Missed Opportunity

In the case of Oracle, the company is suing Google over its use of Java, which Oracle acquired with its purchase of Sun Microsystems, in Android. Despite the fact that Java was being open sourced by Sun, Oracle claims Google needs a license for its implementation of Java in Android. That court case is ongoing, but I wonder whether Oracle may be severely limiting or diminishing Java in the mobile space by attacking Google.

Java, which is now challenged by many other languages and frameworks, particularly on the mobile side, may have actually been Oracle's biggest opportunity in mobile software, but the company may be driving developers to other options with its legal actions.

Android Arming for Battle

Now let's consider Apple, which despite its technological, innovative and market capabilities, is currently claiming patent and IP infringement by many others, including Motorola, HTC and Samsung. It is worth noting that at the time Android was first hitting the market in 2008, I wrote that
we expected to see rapid development, involvement from many handset and wireless carriers, and a true challenge to Apple and its iPhone from Android.

We were told that Apple's lead in handsets sold and in applications was practically insurmountable, and the standard response from Apple was that Android was not a competitive concern. It's interesting to see now that Android is a major force in the market, there is all of this legal action against the software and its backers.

As Google initially focused on its technology, innovation, partners and building an ecosystem for Android, it seems it was largely ignoring the patent game, which can be equally unwise given the realities and rules of today's market. That has now changed, as Google arms itself with additional patents through its Motorola acquisition and by facilitating patents for others to counterattack Apple.

Big Mistake

SCO showed that convoluted contract, IP and other courtroom claims make for long, convoluted courtroom processes. Considering the SCO case in its totality, it seems the more the company relied on legal means to compete or limit other competitors, the further it strayed from users, consumers and its core business.

In the time that SCO made its sometimes odd claims and complex legal maneuvers, Linux was being pushed technically to better support clustering, scalability and virtualization -- all things that have contributed to the dominance of Linux and open source
in cloud computing and
in HPC.

Microsoft, Oracle and Apple have a lot more technology and innovation capability and opportunity than SCO did, but I believe their focus on using IP claims and court filings competitively is a losing bet -- and one that will leave them not necessarily devastated like SCO, but at a significant disadvantage in the long run.

LinuxInsider columnist Jay Lyman is a senior analyst for
The 451 Group, covering open source software and focusing primarily on Linux operating systems, application development, systems management and cloud computing. Lyman has been a speaker at numerous industry events, including the Open Source Business Conference, OSCON, Linux Plumber's Conference and Open Source World/Linux World, on topics such as Linux and open source in cloud computing, mobile software, and the impact of economic conditions and customer perspectives on open source. Follow his blog
here.